A big step forward, certainly. The focus, and some of the reading that resulted from the Googling, was very useful. I don't think the question ever needs to be asked in the form whether John Locke is for or against gestational surrogacy. He would have perceived a direct connection to the common law of bastardy that is less immediately evident to us.

The strength that you gain from being in contact with more complex positions is partly diffused by the framing, which is still in the form of "yes" or "no," Peggy Radin v. I-don't-know-who. This is a necessary perspective, but not the only useful one. What your exposure to these and some other positions (I missed John Stuart Mill, for example) now prepares you to ask what we are really discussing. Skipping the big words, is our question how to do this right, or whether doing this is wrong? Are we asking how to achieve the greater good while avoiding so far as is consistent with doing so the development of "exploitative scenarios"? Or are we asking whether this is exploitation?

Unlike the discussion about whether this or that should be permitted or prohibited, the dialogue between consequentialist and deontological positions neither can nor should be concluded. What the essay would benefit from, then, isn't coming to an incomplete conclusion, but rather reflecting more fully the nature of our irresolution.

Ethically and morally, gestational surrogacy raises cause for concern.

Theories underlying property law can also help us understand gestational surrogacy and its legal implications.

Locke believed that “every man has a property in his own person, from which it immediately flows that the labor of his body, and the work of his hands, are properly his.” Interpreting Locke, modern scholar Margaret Jane Radin asserts that an individual has an entitlement to be a person or to be treated as a person. Looking at gestational surrogacy through the lens of these theorists, something doesn’t sit quite right. While Locke’s theory doesn’t explicitly rule out gestational surrogacy, Radin’s interpretation hits directly at the fishiness and uneasiness surrounding the commodification of the womb. Gestational surrogacy carries medical risks beyond that of pregnancy alone. Carriers have to undergo in vitro fertilization, an invasive procedure, and often have to take hormones and other drugs before and during their pregnancy. “Personhood” seems innate and inalienable. Perhaps this is because we, as human actors, have both a sense of ego as well as a sense of empathy. That said, again, a sense of personhood doesn’t necessarily trump one’s sense of autonomy.

If some people wish to sell something personal, why not let them?

Carriers may have many reasons for electing to become surrogates. Primary among them is remuneration. The cost of surrogacy in the United States is approximately $100,000 per pregnancy with additional medical costs included. This is not a small sum of money, and could be a boon for a woman seeking short-term or temporary employment. Yet, I still can’t kick this uneasiness. Radin, in Market Alienability, describes three reasons why we should not allow people to sell things that, like wombs, are identifiably personal. First, she argues that if an item is personal, sometimes the circumstances under which the holder places it on the market might arouse suspicion that her act is coerced. This is a real concern in gestational surrogacy. Income discrepancy in the United States combined with an uptick in demand for surrogate carriers could give rise to an oppressed surrogate class in which increased supply of surrogate carriers drives down the price of the service to levels that could hardly be considered fair. Second, Radin argues that it is important to exclude from social life commodified versions of certain goods, as the commodified version of the good fosters an inferior conception of personhood. Finally, she also argues that commodification for some might lead to commodification for all, and that non-commodification is morally preferable to commodification for certain personal things. Given the nature of birth and society’s connection to the birth narrative, I don’t foresee this domino effect in the area of gestational surrogacy, yet the essence of the argument that some social forces (like love and partnership) should not be commoditized, rings true.

So what?

In the end, I am left in stuck between two ideological positions that both have merit. On the one hand, I know that we, as lawyers, have a duty to protect women from exploitative work environments, and, we, as people, also have the responsibility to protect our social institutions from commodification. Yet, given the circumstances, prohibition would deprive many women of work they might not otherwise get. This seems extreme and unfair. Balancing these two positions, I would support proper government regulation designed to guarantee the health, safety, and welfare of the gestational carrier, as well as unionization to ensure that gestational carriers be paid fair wages in changing economic times. Certain measures such as price floors for service, standardization of medical practices, and legal actions carriers could raise against genetic parents or healthcare providers in court could help reduce the occurrence of exploitative scenarios.

The verb "to quell" is transitive. The sentence says "While A hasn't gone away, A has expanded." There was evidently more than one word choice at fault. This indicates insufficient editorial attention on the sentence level. Reading the text out loud to oneself is usually the most effective way to learn precision in sentence editing. One hears the problems one does not see.

The United States is the “wild West” of surrogacy.

The metaphor is wrong. Evidently there is plenty of law. You mean states differ.

Twenty-two states have legalized paid surrogacy, four have made it illegal or criminalized it, and the remaining twenty-four states have no governing law either way. The state of New York is currently grappling with the legalization and decriminalization of remunerated surrogacy. Currently, 22 states have legalized it, 4 have made it illegal, and the rest have no case law on the matter.

These sentences are repetitive, another sign of weak sentence-level editing and no readback. The reference to "case law" is an odd note: surely these are statutory provisions you are describing?

New York is in fact the only state in which the practice is punishable criminally. As the practice becomes more common, our legal landscape will either envelop paid gestational surrogacy into the fold, or reject it as antithetical to current legal thinking. Examining the issue from the perspective of a few parties at stake, it can be seen that while surrogacy has its considerations and should not be seen as a simple, unregulated business transaction, it is a novel medical practice that, if used effectively, can enhance the welfare of genetic parents and gestational carriers alike.

"Considerations" is another elegant variation, like "quelled," that is worse than simplicity by far. Nor do I understand why surrogacy is a "novel medical practice." The Old Testament is hardly the New England Journal of Medicine.

The point of the draft is advocacy: you are attempting to persuade a reader who is skeptical that she or he should conform to growing indifference about a practice previously disfavored. It is not clear, however, what objections you are endeavoring to overcome, unless they are coming from weak utilitarians who regard this as a close case for balancing that can be affected by speculative arguments about unspecified "regulations." Making pregnancy another part of the gig economy may be different than industrializing it in the Aldous Huxley mold, or subjecting it to theocratic management in the Margaret Atwood manner: as you say, "normative ideals change over time," which might better be rendered "autre temps, autre moeurs." But if you are trying to reach and persuade those who don't want Airbnb for wombs, or the Uberization of the poor as fetus-carriers for rich people with smartphones and a need for "convenience," the arguments you are offering will make matters worse rather than better. Reassurance that the issues at stake in the Baby M case can be cheerfully and effectively dealt with by contract law will inevitably strike such skeptics as partaking of the nature of the problem, not that of the solution. Naturally, in a 21st century context, you find freedom of contract to be a valuable idea, but there is no mention of unionizing womb-workers. Yet if you are trying to speak to anyone who thinks that this is labor (which is, tautologically, anyone who listens to her- or himself speak English), that omission shouts loudly, once again, of the problem not being addressed, let alone answered.

So this serves well the purpose of the first draft, which is to find the roads to improvement. At the level of execution, it lies in more rigorous and comprehensive sentence-level editing. Conceptually, it's time to send your mind off the reservation, away from the lines of thought with which you agree, towards the ones that cause feelings of conflict, doubt, and anger. You need to confront the deontological rather than utilitarian arguments that this is wrong, not by arguing them off, but by inhabiting them long enough to acquire an internal conflict that must be negotiated with, rather than dissociated away. The same process of thinking on the other side must occur with respect to the issues raised from the idea-quarter we call Marx: what happens when pregnancy is subjected to the cash nexus? What does the creation of womb-work in a capitalist market driven by data-mining do, this stupendous variation in standpoints with respect to the means of "production"? Is it sufficient to say that patriarchal, "feudal" control of women's reproductive labor has been replaced by the "single chartered freedom of free trade"?

If this were the sort of subject that could be passed off with the pseudo-policy jargon of Beltway government and national campaigning, politicians would be less inclined to slink out of the room when it comes up. But like the candidate formally known as Jeb! when as governor of Florida he attempted to demagogue an end-of-life issue, experience has taught them that fools playing doctor rush in where moral and political philosophers (no angels they) fear to tread. The beauty of the subject you chose is that it resists all that nonsense very stoutly. Your next attempt to deal with it in 1,000 words will too.

The Viability of Surrogacy

-- By TamarLisbona - 19 Feb 2016

As members of American society, our normative ideals change over time, ebbing and flowing against the grain of tradition. One area in which the discrepancy of this tide is most strongly felt is in family law and reproductive health. While the abortion discussion and debate has by no means quelled, with the advance of technology over the past sixty years, the abortion discussion has expanded into a dialogue on reproductive rights in general and what medical techniques parents can use ethically to bear children. One such issue is surrogacy. Traditionally, surrogacy has been defined to include any woman physically carrying a child to gestation for the purpose of giving it to another party who cannot have children. While that practice alone merits ethical consideration, the more specific practice of gestational surrogacy, in which a woman can elect to incubate an inseminated egg with which she has no genetic connection often in exchange for a sum of money, elicits legal and moral questions that reflect the changing American ethos and legal landscape.

The United States is the “wild West” of surrogacy. Twenty-two states have legalized paid surrogacy, four have made it illegal or criminalized it, and the remaining twenty-four states have no governing law either way. The state of New York is currently grappling with the legalization and decriminalization of remunerated surrogacy. Currently, 22 states have legalized it, 4 have made it illegal, and the rest have no case law on the matter. New York is in fact the only state in which the practice is punishable criminally. As the practice becomes more common, our legal landscape will either envelop paid gestational surrogacy into the fold, or reject it as antithetical to current legal thinking. Examining the issue from the perspective of a few parties at stake, it can be seen that while surrogacy has its considerations and should not be seen as a simple, unregulated business transaction, it is a novel medical practice that, if used effectively, can enhance the welfare of genetic parents and gestational carriers alike.

Financial as well as ethical and emotional concerns from the perspective of the surrogate can be overcome or mitigated with effective regulation.

The natural economic drivers present in the market for surrogacy can be manipulated to avoid exploitative scenarios.

Carriers may have many reasons for electing to help biological parents conceive. Primary among those reasons are financial and emotional concerns. Foregoing a discussion of international surrogacy, the cost of surrogacy in the United States is approximately $100,000 per pregnancy. Income discrepancy in the United States combined with an uptick in demand for surrogate carriers could give rise to an oppressed “surrogate class” in which increased supply of surrogate carriers drives down the price of the service to levels that could hardly be considered fair. While some may argue that this scenario is inevitable, with proper government regulation designed to guarantee the health, safety, and welfare of the carrier, this practice could be used to redistribute wealth effectively. Certain measures such as price floors for service, standardization of medical practices, and actions carriers could raise against genetic parents or healthcare providers in court could help reduce the instance of exploitative scenarios.

Emotional and ethical concerns on the part of the gestational surrogate are complicated, yet inefficient outcomes can be addressed by contract.

Emotional and ethical concerns from the perspective of the carrier must be addressed as well for a regulated gestational surrogacy scheme to be viable. As their bellies grow, women may naturally form bonds with the fetuses they are carrying. In the famous “Baby M” case, a surrogate mother refused to relinquish custody of the child she had contracted to carry for another couple Matter of Baby M, 109 N.J. 396, 537 A.2d 1227 (1988). In a related but alternative scenario, a carrier may also be emotionally and ethically conflicted if biological parents renege on their promise and no longer want the child once it has been implanted in the uterus of the carrier. This situation is rife with ethical conflict that may be difficult to mitigate, yet traditional contract law may be of use here.

Surrogacy provides a benefit to potential parents that outweighs the costs.

From the perspective of the biological family, surrogacy may be an attractive option, despite its complex financial, ethical, and emotional quandaries. While families come in all shapes and sizes, the birth narrative retains its place in American lore and parents continue to place value on rearing biological children. Yet, for many individuals, ranging from those who have suffered illness, to same-sex couples, to celebrities that would like to retain their physiques, the natural gestational process is simply not an option. The next best thing, having a friend or family member carry your child, seems emotionally fraught. For those who can afford it, gestational surrogacy seems to offer the “best of both worlds.” Given the high cost, however, an increased desire for surrogacy coupled with an increase in supply of carriers could create an elite “class” of parents, which may have detrimental effects on society. This scenario should be contemplated and examined by legislators guided by ethicists and medical professionals with relevant experience.

American society at large may be lukewarm to surrogacy, but this is not an insurmountable barrier.

Reeling from the Civil War and World War II, American society continues to reject anything that is reminiscent of slavery or genetic engineering, and perhaps rightly so. Autonomy is an American principle, and the physical manifestation of the body is sacred and cannot be infringed upon without due process of law. It is culturally accepted that one cannot sell his body parts in any legitimate marketplace. This is true for the sale of children as well. While these facts could be used to cut against paid surrogacy, as the definition of family and family values continue to change in this country, the need for a legal and safe method for conception will be essential to avoiding exploitation and Americans should be free to experiment with new and novel options.

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